K. RAJAGOPAL Vs. COMMISSIONER OF CENTRAL EXCISE, MADURAI

JUDGEMENT

(1.) BOTH these appeals arise from Order -in -Original No. 7/2000, dated 27 -10 -2000 by which the Commissioner, on remand by CEGAT vide its final order Nos. 567 -568/99, dated 11 -3 -99, has re -confirmed the duty and penalties in terms of his order. While the CEGAT remanding the matter had already confirmed penalty on shortages found in the premises and for non -maintenance of F -4 Registers. Penalty on Shri Rajagopal, the Partner of the firm was confirmed for not maintaining the registers and on the allegation of shortages. However, on the question of clandestine removal and on the question of the quantum of duty confirmed in terms of one single notebook recovered from the appellants' premises, the matter was remanded for de novo consideration and to re -consider all the pleas in the light of the submissions made before the Tribunal and also in the light of the settled law that a mere seizure of notebook without examining its scribe cannot be the criteria for confirming the demands without any corroborative evidence. The Commissioner has again re -confirmed the demands and on the point of scribe of the notebook not having been examined and statements recorded at the time of seizure when he was present in the company at the time of raid, the Commissioner notes in Para 16 of his order as follows :

(2.) ARGUING for the appellants, ld. Sr. Advocate Shri S. Ramachandran put forth the following proposition on clandestine removal that the same cannot be confirmed unless the department produces substantial evidence which is cogent and clear to prove the purchase of raw material, clandestine manufacture, sale and receipt of funds. In this case, the scribe has not been examined and the entries in the notebook has not been proved. It is well settled that demands for clandestine removal cannot be confirmed merely on the basis of seized notebook maintained by some worker which was not examined and details were not corroborated with relevant material on record. He has also referred to the affidavit of the Foreman which has not been considered, he denied about the manufacture of such huge quantities of firework and the findings are all based on presumptions and assumptions and no statements can be confirmed merely on the basis of such presumptions as has been laid down in the following judgments : -

(3.) IN reply, ld. SDR Shri G. Sreekumar Menon relied on the findings which are extracted supra. He submits that authenticity of the notebook was not challenged by the Managing Partner and therefore the entries made therein are deemed to have been proved as the same contained the various details of manufacture and removal of each item of fire -work. Therefore, it could be easily presumed that such production took place and the demands are therefore required to be confirmed.